I’ve been trying to write a post about Buffalo’s Common Council for days now. But focusing on the ways such an uninspiring legislative body functions is, well, depressing. To boot, summer weather has finally arrived in Western New York.

So, I’m going to embrace the suggestion from a trusted friend and sometime “guardian angel.” Rather than pen another gloomy post involving Council President Darius Pridgen, South District Council Member Chris Scanlon, or Delaware District’s Joel Feroleto, etc., I will share some photographs that I took on the sunny and breezy final day of June, 2019 along Buffalo’s shoreline.

But, first, I must split a hair.

My environmental allies, the fishing public, the media, State officials, the Erie Canal Harbor Development Corporation (ECHDC), and virtually every knowledgeable and sensible WNY’er that I’ve encountered, would agree that the pictures that follow were snapped on my trek around the southern portion of Buffalo’s Outer Harbor.

However, the City of Buffalo’s Common Council, at the recommendation of Mayor Byron Brown’s Office of Strategic Planning, excluded from the definition of the “Outer Harbor” contained in the “Green Code” [officially, Uniform Development Ordinance] everything south of the former Ford complex (Terminal A and Terminal B). In doing so, our esteemed legislators have excluded, from the protections of criteria intended to protect the Outer Harbor from inappropriate future development, the following: the former Freezer-Queen parcel (where Gerry Buchheit may or may not still wish to construct a 23-story glass-and-steel tower), the Small Boat Harbor, Buffalo Harbor State Park, Gallagher Beach, the Tifft Street Pier, etc. [Note: Here’s how the city in its proposed LWRP, the ECHDC, and State DEC, interpreted the boundaries of the Outer Harbor prior to Mr. Buchheit’s proposed Queen City Landing tower at the former Freezer-Queen site: Outer Harbor defined by LWRP-ECHDC-DEC.]

In other words, the enlightened world will think of the following photos as images of Our Outer Harbor. I hope you’ll enjoy them:

And, here are my favorite images for what you will not see – the proposed 23-story tower!

With All Due Respect,

Art Giacalone

P.S. Please contact Buffalo’s Common Council Members (especially South District Councilman Christopher Scanlon), as well as the Mayor’s office, and insist that the Green Code be amended immediately to include ALL of the Outer Harbor in the “Outer Harbor boundaries” as defined at Section 5.3.3C(1)(a) of the Uniform Development Ordinance. Thank you.

It has been a year-long battle. [See, for example, Giacalone v. WNYMCS – Verified Petition ] But it looks as if a quiet South Buffalo neighborhood – and ancient indigenous burial grounds – will not be encroached upon by a three-story high school building and 24,000-square-foot athletic facility.

I was told today that Western New York Maritime Charter School has signed a contract to purchase the former Buffalo Public School No. 29 facility at 2219 South Park Avenue from South Buffalo Charter School. The parties have yet to determine a closing date.

2219 South Park Ave.

It is not clear whether Maritime plans to use the South Park Avenue building solely as its high school (which is currently located on Genesee Street near downtown Buffalo), or as both its high school and middle school. The 2219 South Park facility, at 63,795 square feet, has approximately the same gross floor area as the three-story high school building Maritime proposed to construct adjacent to the existing Buffum Street middle school.

For the past two years, Maritime’s middle school has been operating at 102 Buffum Street in South Buffalo, a few blocks from Seneca Street. The Buffum Street community has not opposed Maritime’s middle school, which comfortably fits the scale and intensity of the building’s historic use as Buffalo Public School No. 70.

102 Buffum Street

In contrast, Maritime’s expansion plans for a high school and athletic building have met substantial resistance – by residents at the Common Council’s June 2018 public hearing, in two legal proceedings brought in State Supreme Court, and by various indigenous activists. The location chosen by Maritime for its expansion plans created two major concerns.

The existing Buffum Street school is surrounded on the south, east and west by one-story and two-story residences (on Buffum and Silverdale Place), and on the north by an undeveloped field which borders the rear yards of single-family homes on Zittel Avenue. The narrow, quiet residential streets surrounding former School No. 70 were not meant to accommodate the traffic and activities associated with a high school. Maritime’s planned expansion threatened the character of the existing neighborhood, and the ability of nearby residents to peacefully enjoy their homes.

Buffum St. homes

Of equal (if not greater) importance, the 102 Buffum Street parcel is located within an area designated “archeologically sensitive” by the State Historic Preservation Office [SHPO]. It played an important role historically as the site of the Buffalo Creek Reservation’s Mission House (school), and is situated within a couple hundred feet of the Seneca Indian Park. Additionally, the 102 Buffum Street parcel and surrounding area is considered sacred by Seneca and other indigenous peoples as the site of ancient burial grounds.

Seneca Indian Park

Initially, Maritime and city officials, including, significantly, Councilmember Christopher Scanlon, chose to disregard the potential harm the expansion plans posed to archeological and historic resources. However, this past September, Maritime hired an archeological firm, Panamerican Consultants, Inc., to conduct what is known as a “Phase 1A” archeological investigation of the project site.

I’m not a mind reader, but it appears that the results of the archeological study may have convinced Maritime to abandon its plans to construct its high school and athletic facility at 102 Buffum Street, and to search for other options. If my assumption is correct, and Maritime has decided, at a minimum, to move its high school to the South Park Avenue address, I feel it will be a WIN-WIN situation for all involved:

First, human remains will not be desecrated, or archeological resources adversely impacted, by development at the Buffum Street site.

Second, while the 102 Buffum Street site is on a narrow residential street, surrounded by homes, and three blocks from Seneca Street’s commercial strip, 2219 South Park Avenue is located on a major street and bus route with adjoining commercial activities:

Third, in contrast to 102 Buffum Street (where the undeveloped area is sloped, has substantial drainage problems, and could not be readily used for recreational activities), 2219 South Park is adjacent to a city park with ballfields, basketball courts, and playground facilities:

Okell Park

View of rear of school

View from rear of school

I look forward to the official announcement of Maritime charter school’s purchase of the 2219 South Park Avenue facility, and its plans for Buffum Street. And, I wish them well!

As you probably know, Maritime Charter School wants to build a three-story, 65,000-square-foot high school building, and a 24,000-square-foot pre-fabricated athletic building (large enough for three full-size basketball courts) at the rear of its existing two-story middle school at 102 Buffum Street (the former Public School No. 70).

The proposed “expansion” and addition of a high school would negatively impact nearby residents and the ability to peacefully enjoy life in the Buffum Street neighborhood, and threatens the sanctity of lands long held sacred by indigenous groups:

– NYS’s Historic Preservation Office has described the 102 Buffum Street parcel as having “high cultural, historic and archeological sensitivity” due to the likelihood that the Mission House (school) of the Buffalo Creek Indian Reservation was located at the site, and its proximity to the Seneca Indian Park (burial grounds). Archeological resources of great significance to Native American communities, including human remains, could be disturbed if expansion is allowed. See SHPO 06-19-18 letter re 102 Buffum.

– According to Maritime, if the expansion project goes forward, there would be 5 times as many students and faculty at the Buffum Street site, increasing from the current 105 and an estimated 525.

– Maritime’s transportation plan estimates that the combined middle school/high school would bring an average of 104 vehicles to 102 Buffum Street (not counting yellow school buses) each school morning. That’s one car every 35 seconds during the morning rush hour. Nearly as many vehicles would be leaving the Buffum Street site during the peak afternoon rush hour.

– If Maritime’s varsity sports teams play any games at the Buffum Street site, neighborhood residents would experience traffic, parking, and noise issues beyond normal school hours.

– An expanded Maritime school would need an additional 57 parking spaces, and, as a result, the beautiful green lawn and majestic trees on the east side of the existing school building would be removed and be replaced by an asphalt parking lot.

– The number of buildings would increase from 1 to 3. The foundations of the two new buildings would expand beyond the existing paved area at the rear of the school and onto the grassy slope and a portion of the wooded area. These changes would increase the rainwater that runs off the parcel, adding to existing drainage and flooding problems for Zittel Ave. yards. See Charter school addition site plan

City Hall officials, including South District Councilmember Christopher Scanlon, ignored these potential impacts to the Buffum Street neighborhood when they approved the Maritime charter school’s expansion plans this past May and June. Recently, as you may have heard, Maritime asked the City’s Common Council to rescind its June 2018 approval of a “special use permit” which allowed construction of the new high school and athletic buildings. On October 2nd, without any chance for the public to speak, the Common Council – led by Mr. Scanlon – complied with Maritime’s request, rescinding the prior approval. See

Maritime and the Common Council claim that the approval of the expansion plans was set aside so that Maritime can pursue an archeological examination of the Buffum street site. This explanation just isn’t logical. As owner of 102 Buffum Street, Maritime undoubtedly has the right to conduct an archeological study without rescinding the special use permit approval. It’s their land.

From my perspective, the real reason for rescinding the approval is so that the City and Maritime can have a “do-over” – clean up the mistakes the City made when rushing to approve the expansion plans in May and June, and then re-approve the same plans for a new high school building and athletic facility. Maritime’s letter requesting the rescission states, “Maritime still intends to undertake the Project…”

As a lawyer who has spent nearly 30 years representing residents in land use and environmental matters, I have lost virtually all confidence in Buffalo City Hall’s willingness and ability to comply with zoning and environmental review laws. Here are but a few reasons why I believe that the Buffum Street neighborhood cannot rely on City Hall to protect its interests:

Maritime school’s purchase in June 2017 was financed 100% by Ellicott Development, the Paladino family company, and Ellicott Development plans on constructing (and, profiting from) the expansion project. Councilmember Scanlon is deeply connected to the Paladinos. For example, public records show that he received at least 17 political contributions from Paladino-related individuals and entities between Aug. 2012 and Feb. 2016. See Scanlon contributions from Ellicott Development 2012-2016

At the Common Council’s June 2018 public hearing, a respected Native American activist advised Scanlon and company of the potential desecration of human remains if the expansion was allowed, and two residents raised concerns regarding traffic, loss of trees, drainage, and neighborhood character. At the close of the hearing, Scanlon stood up, did not mention any of the issues raised by the public, and advised the council that he supported the project. [Note: Scanlon, and an Aug. 17, 2018 Buffalo News editorial, mention Maritime’s reputation as an academic success when expressing support for the expansion project. However, a chart included in a recent Buffalo News article shows that Maritime’s 7th and 8th graders scored the lowest of any of Buffalo’s 12 charter schools and lower than two-thirds of the students in Buffalo’s public schools. In 2018, only 15.0% of Maritime’s tested students were proficient in ELA, and 10.1% proficient in Math.]\

Maritime’s Director of Administrative Services, David P. Comerford (who appeared on behalf of Maritime at the City’s public hearings), has deep City Hall connections. He spent years as Buffalo Sewer Authority’s General Manager, and his brother, James Comerford, Jr., is the City’s Commissioner of Permit & Inspection Services.

Background: More than a century ago, an elementary school (former Public School No. 70) was constructed three blocks east of Seneca Street on Buffum Street, a 20-foot wide residential road. The masonry building stands two-stories high, and has approximately 43,000 square feet of gross floor area.

The elementary school site is encircled by residences – nearly all of which are one- and two-family homes. The residences immediately east of the school pre-date the 1915 construction of former School No. 70. The homes across the street from the project site on Buffum Street, and on Indian Orchard Place and Silverdale Place (one-block long dead-end streets) were built during or prior to the 1920s. The scale of the two-story elementary school building is in harmony with the neighboring residences.

In October 2016, Buffalo’s Common Council – including Mr. Scanlon – approved the sale of the then-vacant school building (along with vacant land to the rear of 102 Buffum Street) to an affiliate of Ellicott Development for $975,600. According to City of Buffalo documents, it was the developer’s intentions to renovate the property for an estimated $390,000, lease it to an existing charter school, and construct a new 45,000 sq. ft. building which would include a gym. No mention was made of a plan to construct a high school building at the site.

WNY Maritime Charter School began operating its “middle school” at 102 Buffum Street in September 2017. The middle school has approximately 81 students and 24 faculty members. Buffalo’s online property information website identifies the charter school as the current owner of the property, and also indicates that the facility is fully exempt from taxes as an education institution.

Current Proposal: On May 1, 2018, William Paladino, as CEO of Ellicott Development Company, submitted a packet to the City of Buffalo on behalf of its “client” – WNY Maritime Charter School. The October 2016 plan to construct “a new building including a gym (45,000 sq. ft.) and an athletic field” has transformed into a proposal “to construct a new 3-story classroom building” (64,913 sq. ft.) and “athletic facility addition” (24,050 sq. ft.) including “3 full size basketball courts.” [See Charter school Special Use Permit packet 05-10-18.]

Neighborhood concerns: Ellicott Development’s new proposal represents a significant increase in both the scale of development and the intensity of land use at the 102 Buffum Street site:

(a) The number of buildings would triple from 1 to 3.

(b) The gross floor area would triple in size from 43,000 sf to 132,000 sf.

(c) The maximum building height would increase from 2-stories to 3-stories.

(d) The current total of 105 students and faculty at the site would explode to 525 (450 students/75 faculty), five-times its current population.

(e) A beautiful grassy lawn on the east side of the existing school, graced by 8 to 10 mature trees, would be paved over to add an additional 57 parking spaces.

As expressed during a June 5, 2018 public hearing before the Common Council’s Legislation Committee (with Mr. Scanlon in attendance), the proposed Maritime charter school expansion threatens to adversely impact several aspects of the environment protected by the State Environmental Quality Review Act (SEQRA):

Impact on Land. SEQRA’s regulations expressly include “a substantial change in the intensity of use of land” as one of the “indicators of significant adverse impacts on the environment.” The stark contrasts between existing conditions at the site and the proposed addition of a high school building, athletic facility, and parking area reflect – in quantifiable terms – a substantial increase in both the scale of development and the intensity of use of the site.

Impact on Traffic. Although the City Planning Board casually spoke of road capacity “adequate to service any increase in traffic,” Buffum Street is not Seneca Street or a busy commercial thoroughfare. To the contrary, 102 Buffum is located three blocks from Seneca, in the heart of a residential neighborhood, where the principal public street is only 20 feet wide, cars purposely park over the curb because of the narrowness of the thoroughfare, and two of the adjacent streets (Indian Orchard and Silverdale) are one-block long dead ends. Traveling on Buffum Street becomes more difficult, even treacherous, during the winter months. School buses – with only 81 students currently attending the school – already have a difficult time maneuvering around each other as they approach and depart the school. Note: The developer’s unsupported premise that 90% of the high school students will be using public transportation to get to and from the school seems unrealistic and self-serving. And, no consideration has been given to the capacity of either the on-site parking spaces, or adjacent residential streets, to safely handle added traffic when the Maritime high school functions as “home team” for its basketball and other varsity games.

Impact of Existing Neighborhood/Community Character. The above-noted substantial increase in the scale of development and the intensity of use of the site will also have a significant adverse impact on the existing character of the surrounding neighborhood of modest one- and two-family residences. [See 6 NYCRR 617.2(l), 617.7(c)(1)(v).] Their scale and architectural features are in harmony with the two-story existing school building, and are incompatible with the size and sterile façade proposed for the 3-story new classroom building. Additionally, the existing character of the surrounding residential neighborhood will be adversely impacted by the sheer number of students and faculty that would be coming to the site daily – estimated at a combined 525 individuals – starting at approximately 7:15 AM when the buses and autos begin to arrive.

Impact on historical, archeological, and aesthetic resources. The mature trees and green lawn east of the existing school building are a significant aesthetic resource to this neighborhood, enjoyed by the residents who live across the street from the school property, passers-by, and, presumably, the staff and students at the Maritime middle school. This important aesthetic resource – which took generations to reach its current state – would be eliminated in-a-blink-of-an-eye if the proposed project is approved, replaced by a large, noise-producing, exhaust-creating parking lot. Note: Although the Planning Board meekly attached as a condition to its site plan approval the following, “All mature trees must be saved where possible,” it is inconceivable that the developer would not claim that the vast majority of the majestic trees (with their extensive root systems) must be removed to ensure a safe, efficient movement of vehicles into and out of the new parking lot. The project site is located within a couple hundred feet of the Seneca Indian Park, a site deemed sacred and part of a much larger area used historically as a burial ground by the Seneca Nation and others. Historians believe that in 1819 the first Seneca Mission house was built by Christian missionaries at the site of the former School No. 70 – that is, the subject parcel. While the developer and the Planning Board acknowledge that the proposed action is in an “archeologically sensitive area,”a “Phase 1” archeological survey has not been conducted.

Construction-related adverse impacts. Construction-related traffic, noise, dust, etc., would have a profound impact on the quality of life of the surrounding residents for many, many months.

Scanlon’s response: The South District’s Common Council member sat passively throughout the comments made by the public on June 5, showing neither interest, nor concern. But Mr. Scanlon made certain that he expressed support, on the record, for Ellicott Development’s proposed project at the close of the hearing. As reported by WBFO:

“… South Buffalo Common Councilmember Chris Scanlon says the project would be a good addition, especially saving the long-closed School 70. ‘If it continued that way, it would eventually have fallen into a state of disrepair,’ says Scanlon. ‘Here we have a[n] entity, a school, which has a wonderful reputation, which is bringing life back to that building and which will inject the South Buffalo community with a couple hundred bodies each and every day, and they’re further investing between $10-$15 million in that location, which will further revitalize the Seneca Street Corridor.’”

Scanlon’s comments ignore several relevant facts. The presence of the middle school students and faculty has already brought “life back to that building” – life commensurate with the scale of both the century-old building and surrounding residential neighborhood. The building was not in significant disrepair when purchased by the Maritime school, and would almost certainly have been an attractive target for conversion into apartments or condominiums given the current momentum by developers to breathe life into Seneca Street. Also, whatever purported benefit “a couple hundred bodies each and every day” would have on the broader South Buffalo community, it is disingenuous, at best, to imply that attracting over 500 individuals a day, every day, would improve the quality of life for the human beings – homeowners and renters – who call the adjacent streets “home.”

One last point needs to be made. Scanlon not only ignored the concerns of his constituents who will bear the burden of placing a high school in their midst, he disregarded the questionable process used by his political contributors – I mean – Ellicott Development, and its client, WNY Maritime Charter School:

(1) Ellicott Development and the Maritime charter school engaged in a bait-and-switch transaction when the sale of the property was before the Common Council in October 2016, expressing a desire to construct one 45,000 sq. ft. building to house a gymnasium, and then replacing that scenario with a plan to add a 65,000 sq. ft. high school building (three-stories in height), a 24,000 sq. ft. athletic facility, and nearly 5 dozen additional parking spaces.

(2) The filing of site plan documents that omitted important and necessary information concerning existing conditions on- and off-site: the location and scale of the nearby residences; the location of driveways on Buffum Street; and, the number and location of the “established trees” on site.

(3) Despite a grassy front lawn approximately 48’ deep, the developer violated the Green Code’s “posted notice” requirement by ignoring the mandate to post a sign “clearly visible from” and “within 10 feet” of Buffum Street. Instead, the public notice was hidden in a classroom window more than 50’ from Buffum Street, obscured by the glare and light reflecting off the school window.

It appears to me that Councilmember Scanlon is more interested in protecting the interests of the developer (who also happens to be an early and faithful campaign contributor), than preserving the quality of life and existing character and historical significance of the surrounding residential neighborhood.

One need not journey to a former confederate state to be confronted by forceful symbols of the white supremacist movement.

Travelers on Indian Church Road, a block from Seneca Street in South Buffalo – whether on foot or bicycle or in a car – are reminded daily of that fact:

The immediate “target” of this flag-waving expression of free speech are – it appears – the non-white attendees of the church diagonally across the street from this otherwise well-kept South Buffalo residence:

There is no doubting the aggressive intent of the display of two large and one small confederate battle flags and a small “don’t tread on me” flag. A sign placed in the midst of waving flags proclaims to anyone who approaches the house: “WARNING – IF YOU CAN READ THIS, YOU ARE IN RANGE.” Here is an (admittedly, poor-quality) image of the sign:

It was reassuring to learn that three elected officials who represent South Buffalo (where I have lived the past two years) – South District Common Council Member Chris Scanlon, Erie County Legislator Patrick Burke, and State Senator Tim Kennedy – participated in a prayer vigil on Wednesday August 16th in Durham Memorial AME Zion Church on Buffalo’s East Side. According to Buffalo News reporter Harold McNeil, speakers in attendance vowed that the hatred and bigotry that descended on Charlottesville on August 12th “will not be allowed to happen here.”

I sent an email to Messrs. Scanlon, Kennedy and Burke on August 17th, forwarding photos of the confederate flag display on Indian Church Road. So far, Pat Burke has responded, and he has expressed his interest in going to speak with the owner of the flag display. I also had a constructive phone conversation this afternoon with a member of Tim Kennedy’s staff.

It is not clear to me what we can and should be doing in Buffalo when we experience symbolic expressions of racial animosity and resentment. I fully acknowledge the “right” of Americans to display whatever flags they wish. But, I also recognize that we – citizens and our elected officials – must find ways to reach out to our neighbors and family members to begin and sustain meaningful dialog and discussions to constructively address the learned hatred and biases that permeate all-too-much of our local and national psyche.

“No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.” ― Nelson Mandela, Long Walk to Freedom

With All Due Respect,

Art Giacalone

P.S. I’m apparently not the only Western New Yorker to see a connection between the Charlottesville-spurred discussions concerning symbols of the Confederacy, and the toppling of Mr. Paladino from his high horse. See the whimsical cartoon drawn by the uber-talented Adam Zyglis – titled “Finally Removed” – posted at the Buffalo News website on August 17, 2017: http://buffalonews.com/2017/08/17/adam-zyglis-finally-removed/.

Buffalo’s Common Council – and, in particular, South District Councilmember Chris Scanlon – should not approve the sale of former School No. 70 on Buffum St. to an affiliate of Carl Paladino’s Ellicott Development company without first hearing from nearby residents in this quiet South Buffalo neighborhood – whether or not Mayor Byron Brown’s administration considers the leasing of the closed school property to an existing charter school as an appropriate use.

My home is less than two blocks from Buffum Street – a well-kept and attractive residential street in the Cazenovia Park section of South Buffalo running three or four blocks between Seneca Street and Fields Ave. I walk the length of Buffum virtually every day, so I’m very familiar with the lack of traffic on the street, and the presence of two historic gems, the Seneca Indian Park at its eastern end:

and 83 Buffum St. – “The oldest house in South Buffalo” – a block from Seneca St.:

I also am well aware of the presence of the former School No. 70 property on the north side of Buffum:

Built in 1915, and, from all outward appearances, in excellent condition, the former elementary school is situated across the narrow street and four or five houses west of the Seneca Indian Park, and several houses east and across the street from the historic 83 Buffum St. site:

From time to time, I’ve chatted with Buffum Street-area residents about the former elementary school, marveled about the size and beauty of the site, and wondered about its future. None of the neighbors wished to see the century-old structure sit idle, but all were concerned about an incompatible use:

I bicycled down Buffum St. after dinner on the 3rd, and, not surprisingly, discovered that the vast majority of neighbors were unaware of the imminent sale of the property to the Ellicott Development affiliate, or the fact that the papers filed with the Common Council offer the following information:

(1) The developer intends to lease the property to “an existing [unspecified] charter school.” [Note: The Maritime Charter School, which includes a high school, has been mentioned as a entity in search of a new home.]

(2) Ellicott Development’s plans include construction of a 45,000-square-foot building (including a gymnasium) and an athletic field.

(3) The developer’s “environmental assessment form” fails to mention the proximity of the school property to the Seneca Indian Park, and proclaims that the proposed action would NOT result in “a substantial increase in traffic above present levels.”

The submissions to the Common Council, apparently prepared by the City’s Department of Real Estate in conjunction with the Mayor’s Office of Strategic Planning, also contain the following disturbing statement: “Pursuant to City Code Chapter 168-5.B(8) the City of Buffalo’s review ordinance exempts the sale of City property, under 50 acres, from SEQR [State Environmental Review Act] review by designating it a Type 2 Action.”

In my opinion, excluding the sale of all city property under 50 acres in size from the scrutiny and public participation intended by SEQR – which defines “environment” broadly to include the existing neighborhood character and traffic levels – violates the intent and requirements of the State environmental review law. As such, the exemption is unlawful. The City of Buffalo’s environmental review ordinance may not provide its residents with less protection than is envisioned by the State’s regulations, which do NOT exclude such significant land dispositions from environmental review. Also, separating the step of selling the land from the project sponsor’s proposed use of the property constitutes “segmentation” of an action, unlawful under SEQRA.

The neighbors surrounding the former School No. 70 site deserve better from their public officials!

I urge the Common Council to refrain from taking any steps to approve the sale of this significant public asset until the voices of the surrounding neighborhood can be heard.

WGRZ reported on June 17th that South District Christopher Patrick Scanlon is leaning toward voting “yes” on the proposed 23-story Queen City Landing project at the former Freezer Queen site on the Outer Harbor. The upcoming decision – which could take place as early as June 22nd – will determine the face and character of Buffalo’s waterfront for generations.

Chris Scanlon has not provided me with any substantial feedback to the communications that I have been sending to him – as my South District legislator – and the entire nine-member Common Council the past few months (although I certainly have tried to constructively provide legal and factual analysis – here’s one example). So now I am sending this open letter to Council Member Scanlon with a series of questions I hope he will consider:

Dear Council Member Scanlon,

It has been five years since you were appointed to fill the South District Common Council seat vacated by State Assemblyman Mickey Kearns. I have little doubt that you are sincerely committed to work in the best interests of the residents in your district, including your wife and young son, and the City of Buffalo as whole. The decision you will make regarding the proposed Queen City Landing project will be a defining moment in your career. Before you cast your vote, I urge you to consider the following questions and comments:

First, what best symbolizes the legacy you wish to leave behind for the City of Buffalo, a sterile and controversial 23-story tower, or an Outer Harbor where nature thrives and city residents and visitors can get away from urban development and enjoy the beauty and serenity of the Lake Erie shoreline?

As you are well aware, two of your fellow Council members – David Francyk and David Rivera – have characterized the Queen City tower as too tall and aesthetically-challenged. Whether or not you agree with that assessment, a vote to allow this project to go forward will alter for generations the character and feel of the Outer Harbor. You must seriously consider what your vision is for Buffalo’s future, and act accordingly.

Second, who do you believe should be determining the future of Buffalo’s Outer Harbor, a private developer with a less-than-consistent track record, or the Common Council speaking on behalf of the entire city?

As Buffalo’s legislative body, you and your fellow Common Council members have a duty under the “Buffalo Coastal Special Review District” process to protect our city’s waterfront from the threat of “inconsistent development” or “inadequately controlled development.” Just this past February, the Common Council – including yourself – adopted the city’s official goals and policies for waterfront development, the Local Waterfront Revitalization Program [LWRP].

Does your vote for the LWRP mean anything? Can you truly reconcile the vision for Buffalo’s Outer Harbor embraced by the LWRP – with its goals of protecting the scenic quality of the coastal area; enhancing the enjoyment and appreciation of visitors to the Outer Harbor’s parks, marina, walkways and nature preserves; preserving and improving state- and locally-designated natural habitats; avoiding disruption of bird migration “to the maximum extent practicable”; and, reusing industrial heritage resources, such as the former Freezer Queen facility – with the plan proposed by Queen City Landing, LLC, and its principal, Gerald A. Buchheit, Jr.?

Mr. Buchheit’s history of proposing projects and then abandoning them may be unrivaled, even if you choose to disregard his “ambitious plan” in 2002 – when his casino development group, Northstar Development Corp., owned the Statler Towers – to convert the Convention Center and the first two floors of the Statler Towers to casino space, construct a parking tower, and develop an entertainment/restaurant/retail complex stretching along the block between Delaware Avenue and Franklin Street.

“Buchheit is a former owner of the Statler. He sold the property to Bashar Issa … He purchased the Freezer Queen property for $3 million at a November 2007 auction. In March 2008, Buchheit announced plans to create as many as 130 condos in the building and additional residential buildings and a hotel on surrounding land. Those plans (below) stalled out with a sputtering economy.”

And here’s Buffalo Rising’s description of Buchheit’s July 2015 plans:

“A plan to convert the vacant Freezer Queen complex at the north end of the Small Boat Harbor is back with a new design. Property owner Gerry Buchheit is partnering with R&P Oak Hill on the $40 million Queen City Landing project that will start with the conversion of the six-story building into 120 apartments priced at $2,000/month and up. Future phases would include new residential buildings and possibly a hotel on the 20-acre site. The development team is working with Trautman Associates to design the project. Plans call for retrofitting the existing building to create one and two-bedroom units ranging in size from 1,200 to 1,500 sq.ft. of living space. The main floor will house a mix of restaurant, bar, and fitness center tenants. The remaining floors will contain the residential units featuring floor-to-ceiling glass, high ceilings, and balconies. Plans also call for penthouse residences added atop the existing structure, and a resident club house with roof top terrace. Covered parking is planned.”

In July 2015, the Buffalo Business Journal noted that “the existing 6 story building provides limitless views of the lake, downtown, and more” [so, I must ask, who needs a 23-story tower?]. It also provided the following priceless quotes from Gerry Buchheit:

“Now is the time,” Buchheit said Thursday while revealing his proposed plans at an event sponsored by Business First… “We envision this as a local hot spot,” Buchheit said. “This could be a regional example of a community can re-imagine its waterfront.”

As you know, Mr. Buchheit’s representatives obtained approvals from the City of Buffalo for both his 2008 and 2015 plans. Then each project was abandoned.

Note: Mr. Buchheit now claims that he must demolish – and not reuse – the existing Freezer Queen building because the structure sits in a 100-year FEMA floodplain. It was sitting in the same floodplain in 2008 and 2015. Are we to believe, on the one hand, that Mr. Buchheit presented his 2008 and 2015 plans to the City of Buffalo without taking into consideration the hazards of building in a floodplain, or, on the other hand, that he is using the floodplain as an excuse so that he can build a 23-story monument to his ego?

As South District Council Member you must objectively ask: Is this is the person to whom one can confidently entrust the future of Buffalo’s Outer Harbor?

Third, are you able to identify any meaningful mitigation measures incorporated into the Queen City Landing project to reduce adverse aesthetic and environmental impacts?

“In a phone interview on Friday evening, Councilman Scanlon said he is leaning toward voting ‘yes’ on the project. ‘If you look at what the Planning Board was doing, as lead agency, in determining that it didn’t need a full Environmental Impact Statement… I think the Planning Board, in their role as lead agency, they didn’t feel it needed one based on everything they looked at,’ Scanlon said. ‘The issues that were raised, legitimate or non-legitimate, by the public or other people, I think they felt they were mitigated by the developer’s plans.’”

Frankly, I am unaware of any meaningful mitigation measures. Are you able to identify any of the supposed mitigation reflected in the developer’s plans?

Do you know what, if anything, was done to lessen the adverse aesthetic impact of viewing a 23-story, 324-foot building from the vantage point of boaters or restaurant patrons at the adjacent Small Boat Harbor, or from walkers at nearby Greenway Nature Trail or Tifft Nature Preserve?

What mitigation measures, if any, were taken to protect scenic coastal vistas?

Has the developer done anything to change the plans to ensure the safety and convenience of bikers and pedestrians using the public bike path who will be forced to deal with one vehicle entering or exiting the Queen City Landing driveway as often as once every 16 seconds (and, that is the intrusion across the bike path before Mr. Buchheit builds the additional 10-story apartment tower he plans for the rear of the parcel)?

Did the City Planning Board assess how a shorter building might be less disruptive to seasonal bird migration than the proposed 23-story tower?

What mitigation measures were added to ensure that the proposed 400,000-square-foot mixed-use development project – that will include a nightclub, restaurants, and other outdoor activities, and generate thousands of motor vehicles daily – will not adversely impact nearby fishing hot spots, fish spawning and bird nesting sites, and sensitive natural habitats?

Did the developer incorporate the request by Congressman Brian Higgins to “eliminate the negative impacts associated with putting a parking garage (three stories high and 277 feet long) along the water’s edge”?

Lastly, do you agree with the absurd statement at page 4 of the City Planning Board’s Negative Declaration that the 324-foot structure will NOT negatively impact the Outer Harbor’s aesthetic resources and coastal views because it is “a stand-alone building”?

Fourth, are you allowing yourself to be swayed by pressure being placed on you and other Council Members by Mayor Byron Brown’s administration, other elected officials, the media, or business interests?

I keep hearing rumors – from every direction – that you and the other members of the Common Council are being pressured to say “Yes” to this project? Are the rumors true?

Can you assure residents of the South District and throughout the City of Buffalo that your vote for or against the project – or insistence that the building be substantially reduced – will be made based on the requirements of the city’s zoning code and impacts on the environment, and not as a result of political pressure? Your legacy will depend on it!

With All Due Respect,

Art Giacalone

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